On 20-21 July 2001, Pugwash Meeting no. 265 was held in Pugwash, Nova Scotia.
Joint Meeting of the Pugwash Study Group on Intervention, Sovereignty and International Security and the International Commission on Intervention and State Sovereignty
Report By Jeffrey Boutwell
The 4th workshop of the Pugwash Study Group on Intervention, Sovereignty and International Security, held jointly with the International Commission on Intervention and State Sovereignty, took place in Pugwash, Nova Scotia from 20-21 July 2001. A total of 17 participants from seven countries participated in the joint consultation, which was hosted by the Pugwash Park Commission at Thinkers’ Lodge, the home of Cyrus Eaton and site of the first Pugwash Conference in July 1957. Special thanks are due to Patrick Boyer and Giovanni Brenciaglia of the Pugwash Parks Commission, to Douglas Roche and Leonard Johnson of the Canadian Pugwash Group, and to Heidi Hulan of the Canadian Department of Foreign Affairs and International Trade, for their help in making the meeting possible. Pugwash would also like to thank The Rockefeller Foundation for its support of the Pugwash Study Group on Intervention, Sovereignty and International Security. Participants attended the meeting in their individual capacities, and this report is the responsibility of the rapporteur alone.
Whither Humanitarian Intervention?
The meeting began with brief reviews of the work of the Pugwash Study Group and the International Commission on Intervention and State Sovereignty (ICISS), a body set up by the Canadian government in 1999 to prepare a report for UN Secretary General Kofi Annan, due to be delivered in late 2001. Co-chaired by Gareth Evans (Australia) and Mohamed Sahnoun (Algeria), the ICISS has held a series of international consultations to solicit views on differing perspectives and modalities regarding humanitarian intervention and its impact on concepts of state sovereignty.
Previous meetings of the Pugwash Study Group have been held in Venice (December 1999), Como, Italy (September 2000), and Castellón de la Plana, Spain (May 2001), and have resulted in the publication of twoPugwash Occasional Papers covering a broad array of the international legal, military, and political issues involved when the international community seeks to intervene on behalf of individual human rights.
Through its work so far, the ICISS has seen a consensus forming that: (1) humanitarian intervention is a problem that needs addressing; (2) that the United Nations’ Security Council is the preferred vehicle, despite its shortcomings, for taking the lead when intervention is deemed necessary; but that (3) the Security Council will not necessarily always be the final word in determining when and where interventions occur. For many on the commission, these points give hope that the international community can forge common ground on humanitarian intervention, despite continued skepticism among many non-western and developing countries – that the west seeks carte blanche to do what it wants – as well as among western states – that too many countries seek to hide behind the protection of sovereignty.
What is encouraging for many is that, while there are certainly elements of truth in both the aforementioned positions, opposition and mistrust regarding the concept and practice of humanitarian intervention stems as much from the need to solve the practical modalities of deciding when, where and how the international community should intervene when events warrant.
As a needed step in this direction, there is much discussion of the wisdom of changing the parameters and terminology of the debate. Above all this means making states and governments more accountable for their actions vis-à-vis their citizens, so that the issue becomes one of a responsibility to protect on the part of states, rather than a right to intervene on the part of the international community. Similarly, humanitarian intervention becomes rather protective intervention when states and governments have failed their responsibility. For its part, however, the international community has the responsibility to assist states and governments in providing the means by which fundamental human rights can be assured in the first place, before intervention becomes necessary, and then to adequately follow up in post-conflict reconciliation and reconstruction should intervention occur – in short, full cycle involvement.
For its part, the ICISS, in its report, is likely to limit its definition of intervention to military and other types of coercive actions. In doing so, it will frame issues of responsibility as resting primarily with the state in question, with a residual responsibility for intervening to protect the individual falling to the international community only when that state has failed in its responsibility to protect. Mention was made in this regard of article 24 of the UN Charter, where the Security Council has a duty to respond, not just a responsibility.
Regarding this responsibility/duty to respond, what happens if the UN Security Council is either unwilling or unable to act? While believing that a formal request to intervene should always be made first to the Security Council, several participants thought that threshold criteria should be established so that the international community could act even without formal SC approval. Such criteria should be “high and narrow”, involving mass killing, the imminent threat of such killing, and ethnic cleansing, i.e., where the damage is “immediate and irreparable.” Others raised the issue of interventions to restore democracy.
In terms of carrying out interventions, the ICISS is thinking of precautionary principles (just war principles, likelihood of success, right motive, intervention as last resort) providing a guide to action. On the question of legitimacy, discussion still continues on whether, if a formal request is blocked in the Security Council, either the UN General Assembly or regional organizations (of which offending state is a member) could provide such legitimacy. More difficult will be cases of ad hoc coalitions (coalitions of the willing) and unilateral interventions.
Some of the unresolved issues facing the commission are: (1) how necessary is it to redefine sovereignty and its relationship to human rights? (many believe that current notions of sovereignty are already expansive enough to incorporate notions of a responsibility to protect); (2) how far have legal norms evolved to permit extraordinary action in defense of humanitarian values? (again, some believe there is a natural law on the right to protect, while others believe such norms have not evolved nearly enough in contradistinction to state sovereignty); and (3) the use of ad hoc coalitions and unilateral actions (are such actions always impermissible, even if the cause is just?).
In sum, the intervention vs. sovereignty debate is, in many ways, one of “universal righters vs. state firsters.” What provides room for consensus between such conflicting views, however, is that broad agreement remains that the international norm should remain one of non-intervention, while allowing for expanding concepts that legitimize an international responsibility to protect.
The Modalities of Intervention
Despite numerous cases of state failure and internal instability in Africa, the post-Soviet space, and southeast Asia, the current international environment is not at all conducive to well-planned, well-carried out, well supported interventions that can stay the course. Especially in a period of generalized retreat from multilateral institutions, the re-empowerment of state agency may, while seeming a paradox, be all the more important in terms of strengthening notions of a responsibility to protect.
Five categories of the modalities of intervention (across the spectrum from consensual to coercive) were reviewed:
- conflict prevention: the mismatch between needs and means, and discrediting through overselling the prospect of complex packages (e.g., the Oslo accords);
- sanctions, where there are more problems than opportunities, and where it’s difficult to show causal effect and avoid injuring the innocent;
- legal instruments, where definitions of sovereignty are conditional on norms developed through the Nuremburg, Yugoslav and Rwanda tribunals, by the International Criminal Court, by legal intrusion into the conduct of military operations; and by expanding case law that provides for domestic jurisdiction over international behavior (e.g., the US Alien Torts Compensation Act [US code 1350] of 1789 which was employed successfully in modern times first to a case of torture in Paraguay in 1980 and latterly to a Bosnian case);
- military intervention, of three types: (a) coalition action without a direct UN mandate (Kosovo); (b) a UNSC mandate with a framework nation in the lead (Australia in East Timor); and (c) an independently legitimated action to rescue and restore a UN effort (the UK in Sierra Leone);
- full cycle planning, noting how strategic opportunities created by military interventions have been squandered by lack of post-conflict administration and reconstruction (Angola, East Timor, Kosovo).
The discussion that followed touched on a number of points. One concerning legal instruments was that the extradition of Milosevic to the Hague tribunal is not an unalloyed benefit, either for domestic Yugoslav politics (the extradition being a clear violation of the Yugoslav constitution) or in terms of setting a precedent that confirms the concerns of many in the US and elsewhere about international law exceeding the stipulated boundaries of competence, thus infringing upon domestic sovereign law.
On conflict prevention, more needs to be done regarding effective modalities (e.g., Bruce Jentleson’s concept of coercive prevention), especially as these affect great power relations (e.g., the positive role of the OSCE commission on minorities). It was argued that the salience of humanitarian intervention goes beyond cases of state failure to affect the process of great power relations and global governance. The importance of these issues especially for Russia and China (and their domestic space) will affect how the international community reacts to future Rwandas and Kosovos.
Regarding global governance and the UN, it was asked, how different would the UN Charter look if it were crafted now; i.e., should we be thinking of revising the Charter to reflect current international realities? Responses displayed little appetite for such revision, with several participants feeling that the Charter is not itself an obstacle (Article 39 providing wide latitude for defining threats to the peace). Moreover, the lack of a formal SC mandate has not proven an obstacle to action (Liberia and Kosovo), reinforcing the view that the SC has primary but not exclusive responsibility. The problems, rather, are political will and capabilities for full cycle intervention.
Others held that the flexibility of the UN Charter in defining threats to the peace is both a strength and a weakness, and that codification of criteria for intervention could regularize UN actions and reduce the inappropriate use of the P-5 veto (especially on procedural issues such as fact-finding missions). Along the same lines, the concept of a responsibility to protect is designed to empower and impel the SC to act, especially in cases where it is difficult to argue that an internal conflict constitutes a threat to international peace and security. Mention was also made of Article 51 of the Charter, of the right to individual and collective self-defense (also found in customary law), tantamount to being a right to be rescued.
It was noted that the Security Council is steadfastly adverse to any attempt to impose codes of conduct that might constrain its freedom to act – or not to act. On the other hand, transparency would be served by requiring P-5 states to explain why they invoked the veto (when they do) to reduce its willful misuse (France has suggested no vetoes in cases of humanitarian emergency).
As a way of ensuring that a P-5 veto did not block needed intervention, it was suggested that, not only would reasons be required for casting a veto, but that action could proceed even in the event of the SC being deadlocked, that only a decisive “no” on the part of the Security Council would prevent intervention. Should a veto block SC approval, an appropriate regional body (one including the offending country), or a variant, which might include willing and able out-of-area actors, would be empowered to act. One participant referred back to the Melian dialogue (the strong do what they want and the weak put up with what they must), adapted it, and asserted that the hard case that should be considered is what happens if the strong and virtuous refuse to act.
Issues of Legitimacy
One view held that, from East Pakistan in 1971 to East Timor in 1999, the notion of sovereignty as a responsibility to protect has come a long way. From this perspective, intervention is not an action violating sovereignty, but rather one forcing states to live up to their responsibilities.
One way of considering the legitimacy of humanitarian interventions is to place such interventions along a consensual/coercive continuum. Applying this framework to the three cases of military intervention raised earlier in the discussion, Sierra Leone poses no problem concerning legitimacy, as the government in Freetown requested international aid. Regarding East Timor, the consent of the Indonesian government was granted, albeit following strong international diplomatic and economic coercion. Kosovo represents the most difficult case. While not legitimate in the narrow sense of not having the approval of a direct mandate from the UN Security Council, the Kosovo intervention was justified by NATO on primarily humanitarian grounds. These were amplified in public only by the British government, which refuted the accusation of illegitimacy by pointing to the framing authority of past UNSC resolutions on Yugoslavia as well as to the six non-aligned states in the Security Council which joined western nations in voting against the Russian resolution (condemning the NATO action), which could be taken as implicit approval. The wider international response was either sympathetic or muted.
Pushing the envelope further, this view held that there are three ways the Kosovo intervention could be said to be legitimate: (1) while not legal, the NATO action was moral; (2) new legal norms are evolving that, in cases like Kosovo, justify acting outside of a Security Council mandate; (3) Kosovo can be viewed as the domestic legal equivalent of mitigation, where the law allows for mitigating circumstances. A comparison was made here with euthanasia in Holland, where judges were lenient because of mitigating circumstances (even though euthanasia was illegal) and over time, norms evolved to the point where the law was changed.
Discussion followed, with the point strongly reiterated by one participant that the Kosovo operation was illegal, not having been sanctioned directly by the UN. In light of the divergence of views within this discussion, the question was raised on how the ICISS report will treat Kosovo, given the importance of consensus if the report is to gain wide acceptance.
The difficulty of reaching consensus on Kosovo was acknowledged, but the point was also made that Kosovo is controversial in large part because of the perceived arrogance with which NATO acted without at least tabling a resolution in the Security Council. There are some in NATO who now regret not having tabled such a resolution, realizing that trying to spare Russian embarrassment at having to cast a veto if a motion was introduced was ill-judged. On the other hand, the point was made that had Russia been forced into a veto, the subsequent (and indispensable) diplomatic role that Russia played might have been jeopardized; the judgment call made was not casually made. Some suggested that, in the future, the legitimacy of interventions can only be assured if resolutions are at least introduced in the Security Council.
The point was also made that the conduct of the air operation might have compromised NATO’s moral authority, but a ground operation from the outset would have had to destroy the Yugoslav Army in order to protect the Kosovars, probably with far greater loss of life and probably no better chance of protecting Kosovar civilians. To the question, which would have been better, a questionable air campaign or nothing, one response thought the question misplaced, as the fault lay earlier in mishandled negotiations that should not have led to a military option in the first place. Another believed that the principal value of the air campaign was not military at all, but lay in having facilitated the circumstances and will within NATO to allow preparation of the ground invasion force, based on the ARRC, which signal was important in the diplomacy which finally ended the matter.
The UN and Regional Organizations
The reality of the intervention issue within the UN is that, although the Secretary General has been promoting a human security agenda, of protecting peoples not states, he necessarily does so within a state-based organization. Normative change may be coming, but it is coming slowly, and primarily among western countries. Kofi Annan has laid down a moral imperative (what do we do about future Rwandas?) which he knows the system cannot deliver on consistently, but which nonetheless has the value of advancing norms of aresponsibility to protect.
At the same time, it must be granted that concerns about intervention on the part of non-western countries are both emotional and real (e.g., India’s argument about the KLA provoking repression that triggered the NATO intervention, giving the KLA what they could not achieve legitimately). Unfortunately, General Assembly debates often fail to come to grips with what happens when sovereignty and human rights clash. Quite often, sovereignty concerns are not really the issue; it is the selective nature of interventions. Non-western countries know that interventions will not happen against the P-5, their major allies, or the major regional powers (without their consent, most probably coerced). And, when interventions do occur, they will be based on a strongly perceived national interest (on the part of the intervenors) and the calculation of a reasonable chance of success at acceptable cost (Kosovo, yes; the Democratic Republic of Congo, no).
What can be done about this reluctance to intervene where and when it is needed? Reference was made to the French proposal for not using the veto in the Security Council in cases of massive violations of human rights, but Russian and Chinese agreement is not likely. Sanctions are usually neither effective or timely. While a UN military force might be the logical way to go, opposition from the US and G-7 make it a non-starter. Private armies may be more professional and cheaper than some forces that the UN has fielded in the past, but are too politically unpalatable for many states to accept. Interventions by regional organizations are a logical solution, but have inherent problems stemming from lack of capacity and partiality (bias).
Discussion of the role of regional organizations acknowledged the problems of national self-interest and agenda-setting by major regional powers within such organizations (e.g., Nigeria’s role in ECOMOG), a fundamental lack of capacity, and the lack of moral authority (which only the UN has). Ideally, interventions by regional organizations should occur under a UN mandate with adequate support provided by the international community. Yet issues of selectivity (why Kosovo and not Rwanda?), casualty and sensitivity on the part of western countries argue for building regional capacity within organizations like the OAU. Indeed, Africans are requesting help in capacity building, with many advocating the creation of what Nkrumah in the 1960s proposed as an ‘African high command’ and rapid deployment force. Yet the OAU is moving slowly, focusing more on conflict prevention and resolution, and building capacity in subregions to contain conflicts, not on building up intervention capabilities per se.
In the discussion of capacity building, reference was made to how the UK responded to the deteriorating situation in Sierra Leone within four days, stabilized the situation, and then helped build a workable coalition between the Sierra Leone government and UNAMSIL. Are there lessons here for building future capacity?
While another view held that ECOMOG is a poor example of regional organization peacekeeping, several positive developments were cited, including Canada’s lead in forming an international peacekeeping brigade and the implementation of at least some of the Brahimi proposals (12 standing officers to provide intelligence and warning for the Secretary General).
A question was raised about South Africa’s role in OAU and subregional peacekeeping, both in terms of providing political support and capacity building. It was noted in response that the prospects for a more active South African role are not good, given Johannesburg’s experience in Lesotho and residual suspicion in black Africa about South African motives (e.g., South Africa giving priority to trade relations with the EU, not neighboring countries). Moreover, the South African government doesn’t feel in total control of its own armed forces. One view was even more pessimistic, thinking the South African domestic situation is extremely volatile (AIDS, land distribution, unemployment, race relations) and could lead to widespread disorder.
Discussion ended on the point that, while strengthening the capacity of regional organizations (such as the EU coalition force of 60,000 troops) could increase the means available for intervention, such developments would also gradually erode the monopoly of authority currently held by the SC.
The Future of Humanitarian Intervention
For one participant, the political debate over sovereignty and intervention is more accurately a clash of apprehensions: the fear of too many interventions masking the reality of too few interventions. Noted also were the often paradoxical positions of countries (e.g., Algeria is against intervention in theory, but was pushing the west to act in Sierra Leone). It was suggested that the toughest challenges may lie in the “middle space” between the current ICISS remit and all-out war, and be found geographically in the post-Soviet space and in Asia.
To the question posed by Kofi Annan, will there be another Rwanda, one response was quite possibly, but in a far more difficult country such as the DRC or Indonesia (West Papua, Aceh). One view held that, in such cases, the outcome is unlikely to be UN-mandated responses, but emergency responses like that of the UK in Sierra Leone. Others disagreed, seeing the DRC and Indonesia as far less hospitable to such actions as a small country like Sierra Leone. It was also noted that the humanitarian imperative does not seem to be responding to the gradually evolving genocide in Burundi.
On the question of the motives underlying intervention, one view held that economic and narrow national interests can still promote humanitarian ends, one example being Vietnam’s incursion into Cambodia. Operation Tourquoise in Rwanda was also cited, as both serving French national interests yet saving 15,000 to 20,000 lives. Another participant strongly disagreed, noting that the saving of some lives was outweighed by the French facilitating the escape of tens of thousands of Hutu genocidaires into eastern Zaire. In this view, Operation Tourquoise has given humanitarian protection a bad name, especially in Africa. France should not have been given a mandate, as their motives were patently not to promote humanitarian aims, and this should have been recognized.
Ultimately, the issue of what motives for intervention are acceptable to the international community, and which are unacceptable, will impinge directly on the issue of how to mobilize the necessary political will to act when the need is there.
The ICISS Report and Beyond
A summary was provided of the origins of the ICISS, with the Canadian government providing the initiative but not seeking to have substantive input while the commission prepares its report. Wide-ranging consultations have been held to solicit differing national and regional perspectives, with the express aim of being a confidence-building exercise in transparency that can help lay groundwork for follow-up efforts, overcome the perceived faults of the Brahimi experience, and allay fears that the issue will be taken out of the UN’s hands.
The government of Canada will be involved in follow-up efforts to promote the recommendations of the ICISS report, but this strategy will depend on circumstances and the preferences of the Secretary General. Short-term goals are seen to be stimulating formal General Assembly discussion, while longer-term aims are those of promoting norms in support of a responsibility to protect. Questions still to be decided concern options of formal codification of principles (a separate treaty, UN Charter amendment, or UNGA resolution) and where to locate follow-on efforts (Security Council, General Assembly, New York or Geneva, and/or outside the UN). In many ways, the process is seen as more important than the report itself, with 2002 discussions envisioned with regional organizations, national governments, and civil society, once the report has been made public.
A major challenge in this process is finding partners; of putting together a coalition of national governments (the UK, Mozambique, Chile were mentioned), regional organizations, NGOs, and the academic/research community in support of the ICISS process. The difficulty of this is not to be underestimated, however, whether with national governments or NGOs, given the essential proposition of intervention being the use of military force in support of humanitarian aims.
Discussion emphasized the importance of the ICISS being truly a consensus document, focusing on the concept of a responsibility to protect. Issues of law and morality must be front and center so as to resonate with the public. Previous commissions (Brandt, Brundtland, etc.) have contributed to concepts of responsibility within the global community, and combining the moral imperative with practical steps for implementation could do the same for humanitarian intervention.
Canada’s role was seen as especially important, with no loss of momentum despite the transition from Axworthy to Manley, in finding like-minded governments for a true multilateral initiative that can reach out to broader civil society. Also mentioned was the need to focus on national parliaments, the European Parliament, groups like the Parliamentarians for Global Action, and appropriate bodies within organizations like the OSCE. Specific suggestions were made about engaging the Commonwealth secretariat and emphasizing hearings by select committees in important countries (UK, New Zealand, Australia, the US Senate) rather than parliamentary debates. Going beyond the like-minded states will be important; think of getting Vladimir Lukin to promote debate in the Russian Duma.
In terms of coalition building, a parallel was drawn with the Middle Powers Initiative on nuclear weapons issues, focusing above all on the inter-relationship between governments and civil society. Yet the difficulty of forging a coalition on an issue such as humanitarian intervention was not underestimated. Nonetheless, effective use of the ICISS research volume (especially making 2-3 page summaries of major issues available to editorial writers, NGOs, policymakers, etc.) could help stimulate public attention and discussion. Comparisons were made to the World Development and Human Development reports, where presentation of the issues is key (both printed and website).
The work of Edward Luck on the failure of previous UN blue-ribbon commissions was mentioned, especially the need to engage skeptics and bring them on board. While generally supportive, both Human Rights Watch and Amnesty International need to be engaged and directly involved. National militaries are also important, already being heavily engaged in issues of peacekeeping and peace enforcement; the report could be the basis of discussions at institutions such as the Australian defence college, CINCPAC, and national military academies.
Regarding Pugwash, suggestions were made about Canadian Pugwash sponsoring symposia on issues contained in the ICISS report, while international Pugwash could use its network of some 50 national groups to promote similar efforts.
In the end, framing the report, and thus the debate, will be critically important, and there was much support for advancing concepts such as a responsibility to protect on the part of states and governments. Such a strategy could help bridge the gap between governments, multilateral organizations, and NGOs on issues that go to the core of the relative competencies and responsibilities of the nation state and the international community.
Ambassador (ret.) Ochieng Adala
Africa Peace Forum (APFO), Nairobi, Kenya
Ambassador Ken Berry
Dr. Jeffrey Boutwell
Executive Director, Pugwash Conferences on Science and World Affairs, Cambridge, MA, USA
Prof. Patrick Boyer
Q.C., Chairman, Pugwash Park Commission, Nova Scotia, Canada
Mr. Giovanni Brenciaglia
Pugwash Parks Commission, Nova Scotia, Canada
Dr. Walter Dorn
Visiting Professor, Royal Military College of Canada
Prof. John (Jack) Harris
Editor, Interdisciplinary Science Reviews, UK
Ms. Heidi Hulan
Dept. of Foreign Affairs and International Trade, Ottawa, Canada
Dr. Leonard V. Johnson
Member, Pugwash Council, Retired Major General, Canada
Prof. Robert Legvold
Professor of Political Science, The Harriman Institute, Columbia University, New York, USA
Prof. Andrew Mack (UK/Australia)
former Director, Strategic Planning, Executive Office of the Secretary-General, United Nations, New York, NY
Dr. Gwyn Prins
Principal Research Fellow, The European Institute, London School of Economics, UK
Prof. George Rathjens
Secretary-General, Pugwash Conferences on Science and World Affairs
Senator Douglas Roche
O.C., Chairman, Canadian Pugwash Group
Mr. Stanlake Samkange
Dr. Axel Wennmann
Dept. of Political Affairs, United Nations, New York , USA
Dr. Nicholas Wheeler
Senior Lecturer, Department of International Politics, University of Wales, Aberystwyth, UK
Pugwash Rome Office – Claudia Vaughn